PATTON v AUSTRALIAN CONSOLIDATED PRESS LTD (NO 1) SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, SAMUELS and MEAGHER JJA 6 October 1989, 6 October 1989 [1989] NSWCA 161 CONTEMPT — announced refusal by witness to attend court despite subpoena served on her — letter states witness departing for United States — witness fails to appear at court to answer motion before Allen J — matter referred to Court of Appeal — summons charging contempt of court issued — application for orders restraining witness from leaving jurisdiction and requiring surrender of passport — held: Orders made to defend the process of the Court — summons returned and hearing expedited. The Prothonotary v Collins (1985) 2 NSWLR 549 (CA) and Waterhouse and Another y Australian Broadcasting Corporation (1986) 6 NSWLR 733 (CA) referred to. 1. Return the summons of the claimant before the Court on Monday 9 October 1989 at 9.45 am; 2. Abridge the rules as to the service of the summons, and grant leave to the claimant to serve the summons upon Mrs Harrison before 12.30 pm on Sunday 8 October 1989; 3. Order Mrs Vivien Rosalind Harrison to surrender her passport to the Sheriff of the Supreme Court forthwith, and in any case before Monday 9 October 1989 at 9.45 am; 4. Order that Mrs Vivien Rosalind Harrison be restrained from leaving New South Wales before and including 23 October 1989, or further or other order of the Court of Appeal; 5. Reserve costs; and 6. Give liberty to any party to restore this matter to the list at any time at one day's notice to any other party. Kirby P At the end of the Court's list today, an urgent matter was referred into the Court of Appeal by Allen J. His Honour earlier today had before him an application for relief by Sandra Anne Patton. She is the plaintiff in defamation proceedings, which are listed for hearing in the Common Law Division of the Supreme Court on 23 October 1989. Mrs Patton claims relief in respect of the actual, or apprehended, contempt of court by a person upon whom a subpoena has been issued to attend to give evidence in the action. A refusal to answer a subpoena The Court has been informed today that that is the third listing of Mrs Patton's proceedings. Both the defendant in the proceedings, and the plaintiff (who is the claimant before us) wish the proceedings to commence on 23 October 1989. That wish is understandable in the circumstances. The difficulty which has arisen is that one witness whom the claimant considers to be essential to the litigation, namely Mrs Vivien Rosalind Harrison, has indicated her intention not to attend the proceedings on 23 October 1989. This is despite the fact that a subpoena has been issued out of the Court requiring her to give evidence. So much is proved by an affidavit of Mr Donald Landers, sworn 3 October 1989 and read to the Court today. Vivien Rosalind Hobbs, the person named in the subpoena, is the same person as VR Harrison; Harrison being Ms Hobbs's married name. 2 UNREPORTED JUDGMENTS The letter from Mrs Harrison, addressed to Mr Landers is in these terms, dated 25 September 1989: "Dear Sir, Re subpoena 18657 - S Patton. I write to notify the court that I will not be attending on 23 October 1989 to give evidence. I will in fact be returning home to Los Angeles. Yours sincerely, Vivien R Harrison." The date stamp indicates that the letter was received on 27 September 1989. After it was received, its contents was drawn to the notice of the defendant in the defamation proceedings. That party also appears before us (as it did before Allen J) to support the relief now sought by the claimant. When the parties became aware of the projected disobedience of the subpoena of the court, they first had the matter relisted before Allen J. His Honour directed that a notice of motion be forwarded to Mrs Harrison and that she be notified by telegram, at her stated premises in Neutral Bay, of the return of the motion before his Honour today at 2 pm. When, however, the proceedings were called today before Allen J, as the Court has been informed, Mrs Harrison did not appear. His Honour was informed that a telephone conversation had occurred with a male person at the address in Neutral Bay, who is assumed to be the husband of Mrs Harrison. This person informed the solicitor that Mrs Harrison was in hospital having tests for pregnancy and that he could "not be sure" whether she would attend the proceedings in the Supreme Court on 23 October. In the light of this further intimation of the unlikelihood of Mrs Harrison's attendance at court, as required by a subpoena, Allen J directed that a further telephone conversation be had. According to the information placea before the Court, the solicitor gave evidence to his Honour that, in the course of that further telephone conversation this afternoon, the male person declined to say which hospital Mrs Harrison was in, or to give any further assistance. Reference of the matter to the Court of Appeal Allen J, taking a view of the limits on the powers of a judge in the Common Law Division to deal with such contempt or protected contempt of the court, referred the matter into this Court. Cf The Prothonotary v Collins (1985) 2 NSWLR 549. The Court was informed that a summons has been prepared by the claimant charging Mrs Harrison with contempt of court and seeking ancillary relief. Obviously at this stage the Court has not had the opportunity of hearing any case which the claimant may bring; still less to hear any case which Mrs Harrison might choose to place before the Court. No decision has been made concerning the charges which the claimant intends to bring. However, the letter, exhibit A, which is annexed to Mr Landers's affidavit placed before the Court is, if under the hand of Mrs Harrison, the clearest possible indication of her intention to disobey a subpoena of the court. Arguably, it gives rise to a claim of relief to protect the administration of justice. Cf Waterhouse and Another v Australian Broadcasting Corporation (1986) 6 NSWLR 733. The need to defend the process of the court The Court must take steps to protect its process, and (within the principles established by the cases) to ensure compliance with, and prevent defiance of, the law. The claimant seeks relief in three forms from the Court: (1) The return of the summons for contempt before the Court to be dealt with at an early date; (2) An order restraining Mrs Harrison from leaving the jurisdiction until 23 October 1989, or further or other order of the Court; and (3) an order directing Mrs Harrison to surrender her passport to the Sheriff's Officer, to abide further order of the Court. URJ PATTON v AUSTRALIAN CONSOLIDATED PRESS LTD (NO 1) (Meagher JA) 3 In my opinion orders of this nature should be made. They can, of course, be reviewed when the summons is returned before the Court. On that occasion I would expect Mrs Harrison, if served, to attend, or to have legal representation, to answer to the charges made in the summons. Orders The orders which I therefore propose are: 1. Return the summons of the claimant before the Court on Monday 9 October 1389 at 9.45 am; 2. Abridge the rules as to the service of the summons, and grant leave to the claimant to serve the summons upon Mrs Harrison before 12.30 pm on Sunday 8 October 1989; 3. Order Mrs Vivien Rosalind Harrison to surrender her passport to the Sheriff of the Supreme Court forthwith, and in any case before Monday 9 October 1989 at 9.45 am; 4. Order that Mrs Vivien Rosalind Harrison be restrained from leaving New South Wales before and including 23 October 1989, or further or other order of the Court of Appeal; 5. Reserve costs; and 6. Give liberty to any party to restore this matter to the list at any time on one day's notice to any other party. I have indicated that the summons is to be served upon Mrs Harrison. I have not at this stage included any order for substituted service. As the charges are serious, the summons should be served personally, if at all possible. If personal service cannot, or any reason, be effected, the Court will consider an application for an order providing for substituted service. The orders can, of course, be notified to the Australian immigration authorities, or to any other persons whom may have control over the departure of persons from Australia. Samuels JA I agree. Meagher JA I agree. 1. Return the summons of the claimant before the Court on Monday 9 October 1989 at 9.45 am; 2. Abridge the rules as to the service of the summons, and grant leave to the claimant to serve the summons upon Mrs Harrison before 12.30 pm on Sunday 8 October 1989; 3. Order Mrs Vivien Rosalind Harrison to surrender her passport to the Sheriff of the Supreme Court forthwith, and in any case before Monday 9 October 1989 at 9.45 am; 4. Order that Mrs Vivien Rosalind Harrison be restrained from leaving New South Wales before and including 23 October 1989, or further or other order of the Court of Appeal; Reserve costs; and Give liberty to any party to restore this matter to the list at any time at one day's notice to any other party. aun Counsel for Claimant: Ms Gibson Solicitors for Claimant: Landers O'Reilly and Company Counsel for Opponent: Mr Platford Solicitors for Opponent: Gadens Ridgeway